Comment on FR Doc # 2026-01141

**Comment on ATF-2026-0034-0001** **I. Need for Objective, Time-Bound Definitions** The proposed shift to “regular” and “recent” use remains insufficiently defined. To ensure consistency and satisfy APA and due process requirements, the rule should adopt **objective, time-bound thresholds** applied uniformly under federal law: * “Recent use” = use within the **preceding 90 days** * “Pattern of use” = **≥5 discrete uses within 365 days** * “Ongoing use” = activity meeting both criteria These standards create a clear **temporal nexus to current risk**, aligning enforcement with demonstrable present behavior. --- **II. Evidentiary and Enforcement Standards** The rule should define what constitutes sufficient evidence of “unlawful use”: **Evidentiary hierarchy:** 1. **Objective evidence (primary):** * Confirmed toxicology results * Medical records indicating substance abuse 2. **Legal findings (secondary):** * Drug-related arrests or convictions within defined periods * Supervision violations involving controlled substances 3. **Admissions (tertiary):** * Self-admission in sworn or official records only **Safeguards:** * Require corroboration for non-objective evidence * Apply a **clear and convincing evidence** standard * Provide safe harbor absent qualifying evidence within defined timeframes This reduces erroneous denials and improves national consistency. --- **III. Substance-Specific, Risk-Based Standards** A single standard across all substances fails to reflect material differences in risk and public safety impact. The rule should adopt **risk-based thresholds grounded in empirical evidence** (e.g., National Institute on Drug Abuse; Bureau of Justice Statistics). ### A. High-Risk Substances (e.g., methamphetamine, fentanyl, heroin, PCP) * “Recent use” = **≥1 use within 24 months** * Any confirmed use within this window is disqualifying ### B. Lower-Risk Substances (Marijuana) * “Frequent use” = **>180 days of use within 365 days** * Occasional use below this threshold is not disqualifying unless combined with: * Drug-related arrests * Impairment-related offenses * Evidence of dependency --- **IV. Federal Consistency with State Context** Federal law must be applied **uniformly nationwide**, but state legality is a relevant contextual factor: * Marijuana remains unlawful federally; however, in states where it is legal, **use alone should not be dispositive absent frequency or risk indicators** * State legality should act as a **mitigating factor in assessing “ongoing” use and enforcement priority**, not override federal law This preserves federal authority while reducing arbitrary outcomes. --- **V. Clarification of “Access,” “Use,” and “Possession”** The rule should clearly distinguish between substances based on risk: ### A. High-Risk Substances (fentanyl, heroin, methamphetamine, PCP) * **Access, knowing possession, or use** should each be independently disqualifying within defined timeframes * Due to the acute public safety risks, **constructive or joint possession with knowledge** may be sufficient when supported by evidence ### B. Marijuana (in States Where Legal) * Mere **presence, proximity, or access** (e.g., roommates, spouses, shared households) must **not be considered evidence of use or unlawful user status** * **Constructive possession without evidence of personal use or intent** should not be disqualifying * Disqualification should be based on **demonstrated personal use meeting defined frequency thresholds**, not passive exposure This distinction prevents penalizing non-participating individuals while maintaining strict standards for high-risk substances. --- **VI. Policy Rationale and Targeting** The regulation should prioritize: > **Individuals engaged in demonstrably dangerous, ongoing unlawful drug use, supported by objective evidence and a clear temporal nexus to risk.** A structured, evidence-based framework aligns with public safety goals and constitutional considerations, including New York State Rifle & Pistol Association v. Bruen, while reducing arbitrary enforcement and litigation risk. --- **Conclusion** Adopting **clear temporal thresholds, defined evidentiary standards, risk-based substance differentiation, and explicit distinctions between access, possession, and use** will improve enforceability and fairness. These revisions ensure **consistent federal application** while focusing enforcement on **high-risk individuals**, reducing ambiguity and unintended consequences.